Andy on the Road

27 September 2010

Wiretapping the Internet

Filed under: intellectual property,lawsandsausages — Andy @ 10:35 am

I find this depressing but wholly unsurprising.

I like the this passing quote in the article:

In their battle with Research in Motion, countries like Dubai have sought leverage by threatening to block BlackBerry data from their networks. But Ms. Caproni said the F.B.I. did not support filtering the Internet in the United States.

That is, of course, unless we’re filtering the Internet to protect someone’s copyright.  And all of this makes me wonder: if we are going to filter the Internet, and order companies to open up their communications for inspection, can we at least start to find some public forum rights in communication conveyed therein?

24 September 2010

Further thoughts on S. 3804: I’m more scared than I was yesterday

Filed under: intellectual property,lawsandsausages,soapbox — Andy @ 11:54 am

I’ve now had some time to read the Combating Online Infringement and Counterfeits Act (you can too). Reactions to follow, but first a quick sketch of the bill:

The bill gives the Attorney General specific powers to go after websites that are “dedicated to infringing activities.”  (This is both the copyright and trademark context, but I’m going to focus on the former.)  The statute defines “dedicated to infringing activities” as websites (1) “primarily designed” for trademark and copyright infringement, (2) lacking “demonstrable, commercially significant purpose or use” other than infringement, or (3) marketed by its operator to offer infringement. When taken together, these activities must be “central” to the activity of the website to meet this definition.

I used the word “infringement” above. It’s important to note that this is not speaking of traditional, primary infringement, or even established doctrines of vicarious,  contributory, and inducement liability.  It extends further than that, covering those “enabling” or “facilitating” infringement. (I would argue this to be further than the “knowing inducement” standard of contributory liability.)  It also covers those offering or providing access to copyright-protected materials,  including providing links to other Internet resources used to obtain copies.  This too is an expansion of liability, though previously recognized in some lower-court opinions.

Under this bill the Attorney General has the power to proceed in rem against a domain name used by a website “dedicated to infringing activity.”  The in rem nature of this is important: instead of having the lawsuit proceed against the person responsible for the infringing activity, the lawsuit is filed over the website itself.  Thus, a judgment over the property binds the world with respect to the property, instead of just binding the defendant in the particular case.

The AG must send notice to the “registrant of the domain” (if available) and published notice of the action. The lawsuit would either be filed in the District of Columbia (if the registry is outside the United States) or the district housing the registrant or registry of the domain.  All court document are to be served on the “domain name registrar,” or, failing that, on the “registry.”  The remedy provided is injunctive and not monetary – a temporary restraining order, a preliminary injunction, and/or a permanent injunction.  All the requirements for having a court issue this injunction are tied to Rule 65 of the Federal Rules of Civil Procedure presumably require the standard demonstrations of proof for those remedies.  Should a court be persuaded that injunction is appropriate, the AG can then serve the court’s order on the registrant or registry, who is then ordered to suspend operation of the website and lock the domain name.  If the registry is foreign, the AG can (with a court order) tell a “service provider,” a financial transaction provider, or an advertising agent on the website to cease serving that website, effectively creating a firewall for the average American user.

The bill does provide for modification of a court order.  The owner or operator of the website may petition the court to modify, suspend, or vacate the order based on evidence that it is no longer “dedicated to infringing activities” or that the order should be vacated in the interest of justice.  The AG can petition for modification to expand it to cover a migratory domain name and to include additional domain names “used in substantially the same manner” as the initial site.  Should the domain name registration expire, the court order automatically ceases.

As mentioned above, the AG will maintain a public listing of domains subject to this order, as well as those that the DoJ believes to be qualifying, but for which AG has not yet filed an action.  The AG also must inform our Intellectual Property Enforcement Coordinator (colloquially known as the “Copyright Czar”), who will also post the affected domain names on a public website.  The AG must also publish a procedure for receiving information from public about sites “dedicated to infringing activities,” and give guidance to IP-holders as to how to provide the DoJ with information to begin an investigation.

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So that’s the bill, and here are my reservations about it:

My first reaction is one shared by EFF several other groups – this is the very first time I can think of where the United States is prepared to assert its sovereign domain over the entire Internet.  By proceeding in rem and going after domain name registries directly, we are leveraging the coincidental fact that most of the major top-level root domain servers are located inside of the United States, and most of the domain registration services (the GoDaddys and Dotsters of the world) are located here too.  The reason for doing this is obvious: it’s expedient.  The defendant may be hard to identify, located abroad, or deliberately hard to reach.  Instead of going after her they can go after the severs she uses, which usually have fixed business addresses and legal departments.  (I’m not quite sure if this is meant to cover to the DNS root servers or the domain name registration services themselves – more on that below.)  In the rare cases where the United States does not house the addressing servers, the bill’s solution is to simply throw up a firewall, which is a pretty extreme measure.

This would not be a problem if I believed that this would only be used to go after websites solely dedicated to posting up torrents for movies, but I doubt this is the case.  The terms used here seem to expand further than that.  They encompass The Pirate Bay and MegaUpload for sure (and make no mistake, they are the targets of this legislation), but the bill arguably covers many more sites.  This has great potential to seriously upset the balance of liability between websites and content controllers.  In the Sony Betamax case we gave technology creators a wide berth, shielding from liability when a technology was capable of “substantial non-infringing uses.”  Justice Breyer’s concurrence in Grokster states that the Court in Sony was looking at about 9% non-infringing use, and found that small percent to be “substantial” enough. Is 9% non-infringing use “commercially significant” enough to avoid in rem takedown here?  Tumblr is a service that is largely dedicated to sharing media, often without the copyright owner’s authorization.  Should they fail to show a commercially substantial use that isn’t dedicated to hosting infringing media files, could they be subject to takedown?  And what about those of us that use Bit Torrent to share legally?  Or use drop.io or MegaUpload simply because our email servers don’t let us send 100 MB attachments?  Or use Tumblr to share media that we ourselves created?  If we don’t make up a commercially significant share of the website’s population do we lose our service?

I think this liability shift is especially powerful with respect to websites driven by third-party content.  We generally immunize web service providers from liability based on conduct of visitors to the site, whether it be copyright under the DMCA or libelous speech under Section 230.  When proceeding in rem there is no meaningful way to distinguish between content posted by third parties and content posted by the website provider.  As Public Knowledge points out, a small-scale media sharing site like a nascent YouTube could easily be taken down.  Why this is so dangerous is an obvious point raised by many other critics – posting material online is an exercise of free expression, and services which aggregate many users are particularly strong forums for such expression, due to their bandwagon nature and ease of access.  We should not so wantonly jeopardize these fora.

All of this is contestable, of course.  But with an in rem proceeding, who exactly is going to appear before the court to debate that with the government’s attorney?  The bill clearly states that the “domain name registrar” (which for reasons I note below I believe is referring the person who registers the website with a registration service like Go Daddy) receives notice in this action, and thus can appear in court to contest this categorical issuance.  But the statute only requires the AG to contact the website owner using the mail and e-mail addresses provided by the registrant to the registrar.  Anyone who has ever registered a domain name knows that these are often faked, as the only other time these addresses are used is in the whois information.  To date, there’s been no legal consequence for feigning this information (though ICANN doesn’t like it and it may violate the terms of use with your registration service).  Are you then left unable to defend your website?  And what of services like Go Daddy’s anonymous registration service?  Does the DoJ get to look around that?  And if you today were to receive an email claiming it was from the Department of Justice and that you had to appear and defend your website’s rights, would you think it spam?  Email is not generally sufficient service of process (at least in federal courts); we’re not used to receiving messages of such legal consequence in our inboxes.  It may not constitutionally offend due process, but it sure does in spirit.

This is not to say that all is lost in this bill.  I take comfort in the fact that this purely a remedy available to the Justice Department.  Prosecutorial discretion will no-doubt mitigate these fears about sweeping up free expression and put any action into some form of greater utilitarian calculus.  But Prof. Seltzer makes a good point about the private sector’s involvement in this bill – IP-owners are given an input into the Attorney General’s execution of the policy, but no similar mechanism is made for advocates for the websites.  The weight of this legislation is clearly in favor of existing content owners.  No wonder Hollywood is so excited about the prospects of this bill.  At least the bill gives us transparency, which (ideally) should help us inform public debate over the merits of this bill’s eventual execution.

Two other, more minor, problems add to my general displeasure.  First, I highly doubt this will be effective at stopping online piracy.  If the allegedly infringing website is only using a service like Go Daddy to register their domain name, leaving content servers elsewhere, this is going to have little practical difference.  Maybe you can’t type in “thepiratebay.org” and have it resolve to the Pirate Bay anymore.  But if you are sophisticated enough to type in “194.71.107.15″ into your address bar, you’ll still get the Pirate Bay. Cutting off the name server will not kill the website.  The Internet is deliberately decentralized in that way.  It would take active network filtering nation-wide to have the effect of blocking the Pirate Bay in the United States, which is a very drastic step indeed.  But say we take that step – what’s to stop the pirates from creating a proxy server network to frustrate that means as well?  Congress is trying to beat web-geeks at their own game.  That is as sisyphean as it is stupid.

Second, in my opinion the bill suffers from some poor drafting. For example, who exactly does the AG give notice to under this bill?  The bill carefully defines what it means to be “dedicated to infringing activity,” but other vital terms like “domain registry” and “registrant” get no clarity.  When the bill speaks of the “registrant,” does it refer to the person who signs up with Go Daddy to get “mywebsite.com,” or is it Go Daddy, who has to go to VeriSign when it registers any “.com” domain name?  Both parties are registering something from a registry, but with which one does the Attorney General interact?  I can make an argument either way.  The bill uses the term “operator” to define the person responsible for controlling the content of the site, so should we assume the website owner is the “operator,” the “registrant” is their domain name service, and the “registry” is VeriSign?  On the other hand, “registrant” does appear in one other section in Title 18, referring there to the user of a web service.  Should we impute a similar definition here?  My guess, based on the way in which this bill distinguishes “registrants” from a “registry,” is that the “registrant” is the person who registers a domain name from a “registrar” like Go Daddy,  but it’s far from certain.  The bill has similar trouble trying to define who an online “service provider” is. The statute reflexively defines Internet “service provider” by its definition in 17 U.S.C. § 512(k)(1).  The problem is, that section has two different definitions for service provider – either an ISP as we think of the term colloquially, or anyone who provides any service on the Internet.  Would it have been so hard to pick one definition and include it in the bill?

********************

I said a few days ago that I agree in spirit with the bill, and I still feel the same way today.  I do not follow my colleagues who categorically reject using in rem tactics to try and stop infringing activity on the Internet.  I do not think cyberspace should be categorically immune from government intervention.  I recognize that there will be times when we cannot reach the person, and can only exercise power over the data the person left in a server in Virginia.  But going after a website for its content should be a last resort, narrowly defined and restrained in execution.  I accept the view that speech which infringes copyright is not subject to First Amendment protection, but any attempt to restrain expression should only follow a full and fair adjudication of the infringement question.  It should be applicable only to those services which already fit our existing doctrines of secondary infringement liability.  We should not attempt to sweep so broadly without mechanisms to better protect what might get swept up as collateral damage. It is not hard to imagine a website that has important expressive value, but nevertheless is removed from the Internet or blocked in the United States due to its inducement of copyright infringement.  Hell, even the Pirate Bay runs a blog.

And there is one remedy here that I will never endorse: Internet filtering.  We are seriously debating installing what can only be described as a nation-wide firewall.  Consider the company we would keep doing so.

23 September 2010

No action on S.3804 today

Filed under: lawsandsausages — Andy @ 3:25 pm

A much longer post on the subject will follow, but it’s worth nothing that the Senate Judiciary Committee held over S. 3804 today, which according to their Committee Rules means it’ll be at least a week before the bill moves out of committee and onto the floor of the Senate.  With this many cosponsors in the committee, however, it’s really only a matter of time before it moves through.

21 September 2010

New Senate Bill to Combat Online Piracy

Filed under: lawsandsausages — Andy @ 1:21 pm

Apparently we’re not out of the legislation woods yet.  Here’s a new bill introduced late yesterday by Senators Leahy and Hatch: S. 3804,  the “Combating Online Infringement and Counterfeits Act” (THOMAS | PDF).  Analysis to follow, but it sounds like it hinges on prosecution of foreign websites by allowing the Department of Justice to bring infringement actions using in rem jurisdiction.  On first impression, I agree in spirit with the bill, but I worry about the shift from viewing copyright infringement as a series of discrete torts to looking at a website being more generally “dedicated” to infringing activity.  The definition seems tailored enough (at first read), but heavy-handed application is hardly implausible.  That said, I have faith in the CCIPS‘s prosecutorial discretion.  I’d be far less sanguine were this law to have a civil action as well.

According to the BNA the bill is slated to be marked up in committee on Thursday.  I’m no expert on legislative procedure, but that strikes me as a decidedly fast track.

Update: more from Wendy Seltzer, ZDNet, The HillThe Hollywood Reporter, Billboard, Slashdot, Wired, BoingBoing… apparently I was a little late to this party.  Some very bright people here are raising some serious concerns, mainly around how easily the DoJ can bring these actions, and how little the website is involved in the dispute.  I’m inclined to believe the transparency elements of this would mitigate this concern, but this could certainly benefit from some form of website notice procedure.  More to follow.

5 August 2010

What’s changing through the Copyright Cleanup, Clarifications, and Corrections Act of 2010

Filed under: intellectual property,lawsandsausages — Andy @ 5:40 pm

The Senate and House, as predicted, appear to be pushing through a copyright bill before the end of the term.  There’s not much here for those that don’t use the word “wonk” when describing their interest in the subject, but for some reason nobody seems to be writing about it at all, so I guess my blog is as good as any to collect these alterations.

Here are the changes:

1. Greater Use of Electronic Resources at the Copyright Office

The law would change the text following Section 512(c)(2) of Title 17, which addresses the registration of agents for purposes of DMCA notice and takedown procedures, to read (change annotated):

The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, in both electronic and hard copy formats, and may require payment of a fee by service providers to cover the costs of maintaining the directory.

The bill would also alter Section 205(a), which handles the way in which transfers of copyright are recorded at the Copyright Office, by including the following (in italics):

Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. A sworn or official certification may be submitted to the Copyright Office electronically, pursuant to the regulations established by the Register of Copyrights.

Both of these appear to give the Copyright Office wider latitude to rely on electronic correspondence for copyright affairs, which is likely to expedite efficiency and transparency, if done well.  (The Copyright Office has been experimenting with an “e”-presence, but has stumbled in execution.)

2. The Manufacturing Clause is Finally Gone

Section 601 will be repealed and reserved, and the title of Chapter 6 will change from “Manufacturing Requirements, Importation, and Exportation” to “Importation and Exportation.”  Also repealed are referring subsection 409(10), and the following from Section 602(b).:

In a case where the making of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited. In a case where the copies or phonorecords were lawfully made, United States Customs and Border Protection has no authority to prevent their importation unless the provisions of section 601 are applicable. In either case, the Secretary of the Treasury is authorized to prescribe, by regulation, a procedure under which any person claiming an interest in the copyright in a particular work may, upon payment of a specified fee, be entitled to notification by United States Customs and Border Protection of the importation of articles that appear to be copies or phonorecords of the work.

This removes the oft-criticized and no-longer-used manufacturing clause, which limited the ability of foreign manufacturers to import into the United States English-language copies of works, forcing such copies to be printed domestically.  This has been widely criticized as an obstacle for international recognition of U.S. copyrights, and was removed of all force way back in 1986.  I doubt any will mourn its passing.

3. Sublicensing is Expressly Allowed

Section 201(d)(2), governing the transfer of ownership in copyright, is amended as follows:

Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title, including the right to transfer or license the exclusive right to another person in the absence of a written agreement to the contrary.

I don’t know of any cases which found to the contrary, but by adding this language it seems indisputable that licensing a copyrighted work by default includes the right to sublicense that work, absent agreement to the contrary.  Interestingly, Germany and a few other countries take the opposite tack on this issue, requiring original author consent for sublicensing, absent agreements to the contrary.

4. Old Phonorecord Publication Exemption is Not Just for Musical Works

Section 303(b) is revised:

The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work any musical work, dramatic work, or literary work embodied therein.

Section 303(b) itself was enacted in 1997 to clarify this lingering question about publication dates (which mattered greatly before the enactment of the 1976 Copyright Act in 1978), and the 2010 Act expands this clarification beyond musical works to include anything that might have been distributed via phonorecord before sound recordings were protected.

5. Yes, Copyright Royalty Board Decisions are Subject to Judicial Review.

Section 803(b)(6)(A):

The Copyright Royalty Judges may issue regulations to carry out their functions under this title. All regulations issued by the Copyright Royalty Judges are subject to the approval of the Librarian of Congress and are subject to judicial review pursuant to Chapter 7 of title 5, United States Code, except as set forth in subsection (d). Not later than 120 days after Copyright Royalty Judges or interim Copyright Royalty Judges, as the case may be, are first appointed after the enactment of the Copyright Royalty and Distribution Reform Act of 2004, such judges shall issue regulations to govern proceedings under this chapter.

I am unaware of anyone claiming that CRB decisions were not subject to judicial review as any agency determination might be, but I could see someone raising that argument.  FYI, the constitutionality of the Copyright Royalty Judges is presently being challenged as a violation of the Appointments Clause.

6. Slight Tweak in Sound Recording Blanket Licenses

Sections 114(f)(1)(A) & (B) lay out the method by which the Copyright Royalty Board issues royalty schedules for use of sound recordings in digital broadcasts. Subsection (C) has been revised to state:

The procedures under subparagraphs (A) and (B) shall also be initiated pursuant to a petition filed by any copyright owners of sound recordings or any eligible nonsubscription service or new subscription service indicating that a new type of eligible nonsubscription service or new subscription service on which sound recordings are performed is or is about to become operational, for the purpose of determining reasonable terms and rates of royalty payments with respect to such new type of service for the period beginning with the inception of such new type of service and ending on the date on which the royalty rates and terms for preexisting subscription digital audio transmission services or preexisting satellite digital radio audio services eligible non-subscription services and new subscription services, as the case may be, most recently determined under subparagraph (A) or (B) and chapter 8 expire, or such other period as the parties may agree.

This alteration generalizes the terms used somewhat, and seems to be acknowledging that the § 114(f) license now extends to non-subscription as well as subscription services.  Beyond that, I leave it to digital broadcast experts to forecast how this might change this (very, very messy) section of copyright law.

The balance of the bill seems to be slight typo tweaks and rearrangements to reflect these minor substantive changes.  For more, see the THOMAS entry for the bill.

26 July 2010

Senate passes bill to combat libel tourism

Filed under: Berkman,freeasinspeech,knowyourrights,lawsandsausages — Andy @ 8:20 am

Out-Law.com reported Friday that a lingering bill on free speech and international law just cleared the Senate and is likely to pass the House before the fall recess.  The bill (S.3518) tackles judgments from defamation lawsuits in foreign courts seeking to be enforced in the United States.  Without going into the minutiae of international law, the United States’ willingness to use American law to enforce matters found in foreign courts is regulated by a series of bilateral agreements and domestic laws, and this bill deals where and when the United States is willing to enforce foreign defamation claims.

The bill, entitled the Securing the Protection of our Enduring and Established Constitutional Heritage Act (the “SPEECH Act,” and yes, it’s a horrible name), restricts the enforceability of foreign judgments in two major ways:

First, the law will prohibit the recognition or enforcement of a foreign judgment unless a court determines either that the defamation law in the foreign state provided free speech safeguards equivalent to the First Amendment and the court’s state constitution, or the defending party would have been found liable by a domestic court applying domestic defamation law.

Second, the law provides for protection for online service providers equivalent to the U.S. Communications Decency Act’s Section 230, which provides online service providers some of the most robust protection in all of secondary liability law.  According to the SPEECH Act, a court may not enforce a judgment against a computer service provider unless that judgment can be applied consistent with the shield provided by § 230. (Sidenote – Berkman Fellow David Ardia just published a very impressive empirical study of Section 230 for those curious about that law and its application.)

I would characterize the bill as an unqualified positive congressional move, albeit a bit technical in application (and as Marc Randazza argues, a relatively small step toward broader protection for online speech).  The SPEECH Act clearly targets the growing practice of libel tourism, where defamation and libel plaintiffs use the laws of foreign countries (most frequently, England) to obtain judgments against speech that would likely be protected inside the United States.  Given the universal nature of the Internet, it’s easy to see how online speech — even speech clearly between two domestic parties — can fall into this forum-shopping trick, thus denying even American authors the stalwart protections of the First Amendment.

Read the bill here.

Update 11 August – Eric Goldman posted an analysis of the bill after the President signed it, and gives it the thumbs-up as well (though wonders the extent to which it will be used).

13 May 2010

On the Entertainment Industry and Kagan

Filed under: Berkman,intellectual property,lawsandsausages — Andy @ 9:03 am

There’s a weird lie that’s circulating around a lot of blogs this week that I think needs dispelling. It reminds me of one of my favorite scenes in The Wire, when Marlo tells the security guard “You want it to be one way. But it’s the other way.

Eriq Gardner over at The Hollywood Reporter released an article on Monday claiming that the entertainment industry should fear Kagan on the Court, because:

[a]s dean of Harvard Law School from 2003 to 2009, she was instrumental in beefing up the school’s Berkman Center for Internet & Society by recruiting Lawrence Lessig and others who take a strongly liberal position on “fair use” in copyright disputes.

Slasdot repeated this on Tuesday, and Prof. Friedman over at Ruling Imagination echoed this on Wednesday.

I don’t feel as though I need to go to the substance of this assertion, as the whole premise of it is flat-out wrong, at least as Professor Lessig is concerned. A quick look at his HLS faculty profile shows that he was at Harvard as the head of Berkman between 1998 and 2000. In 2000 he left Harvard to form Stanford’s Center for Internet and Society, where he remained until 2009, when he rejoined Harvard at the Safra Foundation Center for Ethics. Kagan was in the Clinton Administration while Lessig was at Berkman, and served as Dean three years after Lessig had moved to Stanford. I don’t doubt that Kagan was instrumental in bringing Lessig back to Harvard, but unless Hollywood disapproves of government ethics, this shouldn’t be cause for alarm for them.

I have no idea who Gardner’s “others” are at Berkman who take “strongly liberal positions” on fair use, and I think after working there for a summer (and soon starting my second) I would have met these strongly liberal folks at this point. The Center’s not that big a place. I suppose this may be an attack on Professor Charles Nesson, but I don’t think Kagan could have done anything to alter his status at HLS. He’s been on the faculty there since 1966 and tenured since 1969.

Gardner puts this out like it’s one way. Well, it’s the other way.

12 May 2010

Kagan on the Supreme Court Nomination Process (in 1995)

Filed under: lawsandsausages,theroad — Andy @ 8:38 pm

The recent hearings on Supreme Court nominees, though, suggest another question: might we now have a distinct and more troubling confirmation mess? If recent hearings lacked acrimony, they also lacked seriousness and substance. The problem was the opposite of what [Stephen] Carter describes: not that the Senate focused too much on a nominee’s legal views, but that it did so far too little. Otherwise put, the current “confirmation mess” derives not from the role the Senate assumed in evaluating Judge Bork, but from the Senate’s subsequent abandonment of that role and function. When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparison with these recent failures. Out, then, with the new mess and in with the old!

Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 920 (1995).

This is going to be an interesting summer.

17 March 2010

Ireland and America’s interesting copyright relationship

Filed under: huh.,intellectual property,lawsandsausages,nerdingout — Andy @ 10:45 pm

(I was going to call this “The Wind that Shakes the IP” but even I have geek limits.)

Right now, people all over my country are stumbling into bars, drinking some horrible green-food-colored excuse for a beer, and singing the songs of the ol’ country (the population of which seemingly quadruples every March 17th).  Some of these songs are time immemoriam, or at least in the public domain (“Foggy Dew,” “When Irish Eyes Are Smiling,” etc.), but a lot of them are not.  Usually, when a song that’s still protected under copyright is publicly performed like this a royalty is generated for the songwriter.  In the US this means the venue will get a license from ASCAP, BMI, and/or SESAC, which allows the venue to publicly perform most protected music.  These organizations will then log performances through a variety of metrics and distribute the license fees amongst all of their member songwriters.  (There are cynics who criticize this model for a variety of reasons, but that’s beyond the scope of this humble blog post.)

But this often isn’t the case.  American copyright law has some interesting carve-outs for bars and other establishments that routinely play music.  Starting in 1975 with the Supreme Court case of Twentieth Century Music v. Aiken, the US has recognized what we nerds call the “homestyle” exception to public performance royalties.  In short, the “homestyle” exception provides that a person or establishment that has “a single receiving apparatus of a kind commonly used in private homes” does not have to pay for any music piped in from that receiver.  This exception was expanded in 1997 with the Fairness in Music Licensing Act, which exempts an establishment from liability for public performances if, in the case of a restaurant or bar:

  • The source of the music comes from a radio station;
  • the establishment has 3,750 square feet or less of space;
  • the broadcast is to not more than 6 loudspeakers (no more than 4 can be in any given room);
  • no charge is made to hear the transmission;
  • the transmission is not further transmitted; and
  • the original transmission is duly licensed.

(This does indeed exclude a lot of bars, but many are still included.)

The intuitive appeal of such a statute is easy to understand, especially for a Congressman.  Small businesses operate on sliver-thin budgets, and anything that can save them money comes as a kindness for their (usually politically active) proprietors.  What most people don’t know is that this exception puts the US out of compliance with international obligations, and has cost the United States millions of dollars in royalties.  And a lot of that liability traces back to the playing of Irish tunes without paying the Irish songwriters.

Alain Lapter wrote a 45-page treatment of the issue for the Chicago-Kent Journal of Intellectual Property (PDF) which gives a much more thorough analysis, but here’s the synopsis: The US is party to two important international agreements in copyright: (1) the Berne Convention, a long-standing treaty between nations regarding substantive copyright protection (though the US is a very late adopter); and (2) the General Agreements on Tariffs and Trade, which included the Trade Related Aspects of Intellectual Property Rights (“TRIPs”).  Berne gives countries a minimum level of protection for member nations, and is very strict in terms of preserving rights for artists.  Under Berne, all artists have the exclusive right to to control the public performance and public broadcast of their works.  Given this strict language, the Fairness in Music Licensing Act is pretty squarely in violation of the terms of the Berne Convention.

The US does not enter into self-executing treaties in the IP space, so even though Berne would likely stand in conflict with  the Fairness in Music Licensing Act it would be of no consequence.  TRIPs, however, has a mechanism for enforcement under the World Trade Organization (“WTO”).  The treaty further incorporates most of the Berne convention under its Article 13, so now a violation of Berne has some teeth.  And in this case, it bit.

When the Fairness in Music Licensing Act came into being, the Irish Music Rights Organization filed a complaint with the European Union, and they in turn brought a complaint under the WTO.  After a fairly hearty analysis, the dispute resolution panel found that the Fairness in Music Licensing Act did indeed violate US international obligations.  Accordingly, the WTO imposed a deadline of July 2001 for the US to amend the Act to come into compliance with TRIPs.  The US failed to meet that deadline.  The arbitration panel thus ordered the United States to pay royalties to the tune of $1,219,900 per year.  In 2003 the US and the European Community entered into a settlement, whereby the US would pay $3.3 million dollars to a fund for European rights societies, and in turn the US would be given until the end of 2003 to bring its law into compliance with Berne and TRIPs.

This brings us to tonight.  Interestingly, nothing has happened since the 2003 agreement.  The US has made no motion to amend the Fairness in Music Licensing Act, and has further stopped paying the European songwriter societies as agreed to in the arbitration.  Lapter in his excellent article includes a great deal of analysis about proposed revisions to the WTO dispute panel and arguments for better compliance with international agreements, but this discussion remains entirely in the academic realm.  Meanwhile, many bars will pipe in Irish music tonight with no money going to Irish songwriters. The government appears wholly indifferent to the international consequences of this.

9 March 2010

EFF on DMCA, 12 years later

Very quickly between classes here, I want to let you guys know that, as Techdirt notes, EFF has recently released their anual analysis of the Unintended Consequences of the DMCA.  It’s always worth a read.

It’s important to keep in mind as we all try to get inside the minds of those negotiating the much-discussed-but-little-understood ACTA treaty, that (at least for me) the problem is not that the law will directly change American law.  Ben Sheffner makes an excellent case as to why this is unlikely to change American law, and, aside from the three-strikes concern, I have no reason to doubt this claim.  The problem I have with ACTA – aside form the secrecy and the lingering Internet cutoff threat – is that it will lock in DMCA-like provisions in the rest of the world.  It will become harder to act on the advice of organizations like EFF and modify our (admittedly already-codified) law.

This is, in many ways, rescaling one of my favorite arguments in favor of federalism: when states are free to regulate individually, the states can function as “laboratories” experimenting in policy judgments to solve common problems.  States in turn can learn from each other and adopt regulations accordingly, and the greatest policy structures will ideally prevail.  I’m not saying the DMCA is uniformly bad, but I can’t believe that it’s the best we can do to solve the complicated intersections of technology, security, trade, and copyright.  I bet, left to their own devices, other countries can do far better, and we should not be foreclosing this experimentation.

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